Is Working for an IT Consulting or Staffing Company or Labor Broker a Good Way to Get an H-1B Visa?

USCIS will look closely to make sure your consulting company is really going to be your employer.

Question

I soon will graduate with a B.S. in computer science from a university in India. I'd like to work in the United States. My friends tell me that the best way is to get an H-1B visa to work for an IT consulting company. Apparently, such companies work as "labor brokers" to find jobs for recent grads like me. Is this possible?

Answer

You'll want to proceed with caution here. What your friends are describing is the business model of many information technology consulting companies, whereby the company arranges to provide IT services to an end client, either by working on a project in-house at the IT consulting company, or by sending the worker to the client to perform the work on site. Such companies may be referred to variously as consulting companies, staffing companies, or labor brokers.

Since 2010, U.S. Citizenship and Immigration Services (USCIS) has applied enhanced scrutiny to H-1B visa petitions for IT consulting jobs. USCIS wants to be sure there is an actual employer-employee relationship between you and the consulting company for the entire time you will be working in the United States with an H-1B visa. USCIS looks at such factors as who controls the work, the work location, the duration of the assignment, and so on.

When reviewing the consulting company's H-1B petition, USCIS will verify that your actual employer will be the consulting company and not the client for whom you will provide services. If it appears to USCIS that the consulting company will send you off to a third-party location and forget about you after you arrive in the U.S., USCIS will deny the H-1B petition.

Also, even if USCIS initially approves an H-1B visa petition, it still later can audit the petition by sending an inspector to the work location to verify details concerning your employment. If the actual situation is different than what your employer outlined in its H-1B petition, USCIS could seek to revoke the petition. This latter scenario could leave you without a lawful means to remain in the United States.

Additionally, USCIS requires proof that there is actual work for you once you arrive in the United States. This typically means that, as of the time the consulting company submits its H-1B petition, it needs to have a contract with an end client to provide IT services. Your H-1B visa may be limited to the duration of the company's consulting contract. For example, if the company has a contract for an 18-month project, you'll likely get a visa for 18 months, or for a shorter period, depending upon when USCIS finally approves the petition.

Therefore, as with any career decision, if you're considering working for an IT consulting company, you'll want to understand up front how much work there is (that is, what types of projects the company has contracted and for how long) and how your employment relationship will be handled (whether there's confirmation that the consulting company will control your work and not merely send you off to a client location, at which the client will direct all aspects of your employment).

As a final point, there have been reports and court cases of H-1B employers either not paying H-1B workers their wages or seeking to recover damages from H-1B workers who leave the company to work for another employer. Be sure to educate yourself about labor laws in the United States in general and the H-1B visa program in particular to understand your rights.

For example, U.S. Department of Labor regulations require H-1B employers to pay the worker's wages when the employer puts the worker in an unproductive status. If a consulting company does not have a client-billable project for you, it may not want to pay your wages. If you have an H-1B visa, however, the employer still must pay you. This is just one example of something you need to know before making this significant career decision.

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